Summary: We will not investigate this complaint about the Council’s failure to require a developer to enter a section 278 agreement to enable it to remove two highway trees. We do not consider Ms X has suffered a significant personal injustice because of this. Also, we consider further investigation will not lead to a different outcome and we cannot achieve the outcome the complainant is seeking.

The complaint

1. Ms X complains the Council failed to use the correct legal process when allowing a developer to remove two mature highway trees.
2. She wants the Council to admit its error and improve coordination between its planning, highway and tree officer teams. Ms X also wants the Ombudsman to require the Council to order the developer to fund or deliver suitable replacement planting or other environmental mitigation.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. A section 278 agreement is a legal contract between a developer and a Local Highway Authority under the Highways Act 1980. It allows the developer to make permanent changes to an existing public road to support new development.
7. A section 171 agreement is a legal permit which allows private companies or individuals to temporarily work on the public highway.
8. Following refusal by the Council, planning permission was granted to a developer by the Planning Inspector for a scheme which included felling two mature trees on the public highway. No specific conditions were included in the planning permission requiring the developer to enter into a section 278 agreement with the Council for the removal of the trees.
9. When discharging a separate planning condition the Council told the developer that to remove the tree they needed to apply for a section 278 Notice from the Highway Authority (the Council). It also advised no work should start before the notice was in place.
10. The developer applied for a section 171 licence to work on the public road. The Council granted the licence. The developer used the licence to temporarily occupy the road to remove the trees.
11. The removal of the trees is a permanent change to the highway. Ms X says the Council should therefore have required the developer to enter into a section 278 agreement.
12. The Council says it did not consider a section 278 agreement beneficial for the minor work of removing two trees which had planning permission. I note the approval of the discharge of conditions application does not place a planning condition on the applicants to enter a section 278 agreement.
13. I understand Ms X is concerned the Council allowed the removal of the trees without a section 278 agreement in place. I also acknowledge her frustration and distress at the removal of the trees.
14. However, the decision to allow the removal of the trees was made by the Planning Inspector – not the Council. I do not consider the Council’s action of allowing the trees to be felled without a specific section 278 agreement has caused a significant personal injustice.
15. I also note that we cannot order the developer to pay for replacement trees or other environmental mitigation as permission to remove them had been given, without such a requirement.

Back to top

Final decision

16. We will not investigate Ms X’s complaint because we consider that further investigation will not lead to a different outcome. Also, I consider the felling of the trees has caused Ms X’s distress, rather than the lack of a section 278 agreement. Finally, we cannot achieve the outcome Ms X is seeking.

Back to top

Investigator's decision on behalf of the Ombudsman